38 Barb. 402 | N.Y. Sup. Ct. | 1862
Lead Opinion
The plaintiff offered to show that at the time when the agent of the defendants received the premium paid by the plaintiff’s assignors for a renewal of their insurance, and in consideration thereof renewed the policy in suit for another year, he was notified of the policies issued by other companies which are now interposed as a defense. The authority of the agent to - renew is not questioned. Indeed the case states that the policy was renewed by the defendants. It seems to me that the defendants having thus by an unequivocal act declared the contract of insurance to be then valid, notwithstanding the other insurances, and having thereby induced the plaintiff’s assignor to pay the premium for a renewal, must be deemed to have waived the forfeiture, if any had occurred by reason of the omission of the insured
Ho question is entertained but that the provision of the policy which requires that notice be given of other insurances, and that they be “ mentioned in or indorsed upon” the policy, is valid, and that a breach of it renders the contract void. (Gilbert v. The Phoenix Insurance Company, 36 Barb. 372, and cases cited on page 377.)
But I understand the law to be that a policy of insurance thus invalidated may be revived and rendered binding by subsequent acts of the insurers, manifesting an intention to treat it as a valid and subsisting contract, notwithstanding, and with a full knowledge of the forfeiture, as is asserted by the editof of the American Leading Gases. “ The weight of authority, in modern times, seems to súpport the just and reasonable proposition that every condition of avoidance or forfeiture should be construed as meant for the benefit or protection of the person in whose favor it is reserved, and as giving him the option of abrogating the contract, or of setting it up and insisting on its performance.” ( Vol. 2, pp. 624, 625, and cases there cited and commented upon. 25 Barb. 191, 2. 20 id. 474, 5.)
The defendants insist that their acts do not amount to a waiver, by reason of the express provision of the policy that none of its conditions “ can be waived except in writing signed by the secretary.” But it was competent for the parties to rescind or modify this provision, by a valid agreement even in parol; and the executed agreement to renew the pol
I am of the opinion that the offers of the plaintiff, so far as they tended to show a waiver by the defendants of the alleged forfeiture, with full knowledge of all the material circumstances, were improperly rejected. If the (views above expressed are correct, the proof offered would have obviated the first ground upon which the nonsuit was ordered.
The nonsuit was also placed on the further ground that the policy was assigned to the plaintiff without the consent of the defendants.- The question involved in this ruling arises upon the following clause in the policy : “ The interest of the assured in this policy is not assignable, unless by consent of this company manifested in writing; and in case of any transfer or termination of the interest of the insured, by sale or otherwise, without such consent, this policy shall from thenceforth be void and of no effect.”' The language of the case is that the “policy” was assigned to the plaintiff, but as it also states, explicitly, that the assignment was after the loss, and after the defendants had been -served with .notice of the loss, and with the preliminary proofs, it is clear that the only interest which passed by the assignment was the “ claim” or debt which the insured held against the defendants for the amount of the loss. It was not claimed at the trial that the assignment did not carry the debt. The only point taken was that it was without the consent of the defendants. The assignment, therefore, was not a breach of the condition expressed in the clause above cited. The clause does not prohibit the assignment of any “ claim” of the insured “ after” loss. In this respect the case differs materially from
Even if the policy had contained a provision prohibiting a transfer of the interest of the insured after loss, it seems that, according to the weight of authority, the provision would have been illegal and- void. (Goit v. The National Protection Insurance Company, 25 Barb. 189. Courtney v. The New York City Insurance Company, 28 id. 116. 2 Am. Lead. Cas. 623.) But it is not necessary to pass upon that question, as it does not arise in this case.
It follows from these views that there should be a new trial.
Welles, J. concurred.
Dissenting Opinion
dissented from that portion of the foregoing opinion which holds that the facts offered in evidence by the plaintiff were sufficient to preclude the defendants from setting up the forfeiture occasioned by the plaintiff’s omission to give notice of other insurances.
¡New trial granted.
Johnson, James C. Smith and Welles, Justices.]
